Friday, 11 October 2013

Northern Ireland Health Minister 'irrational'

This afternoon the High Court in Belfast has ruled that the maintenance of the lifetime ban on men who have had sex with other men (MSM) in Northern Ireland by the Health Minister Edwin Pots is "irrational".

After the ban was lifted and replaced with a 12 month deferral period in England, Scotland and Wales pressure has been placed on Mr Poots to follow suit in Northern Ireland. Twice he appeared to have reached a conclusion that he would not do so. On both occasions when I raised a Freedom of Information request with his department to find out what additional information he had received and meeting he had had with his opposite numbers about this I was told this was still a live case the final decision not yet being reached. Therefore not all the information was not forthcoming.

The judicial review was brought by one individual who claimed that the minister had displayed apparent bias that went beyond religious beliefs and into the realms of prejudice. Ironically one of the defenses used by Northern Ireland's Attorney General, John Larkin QC, was that the individual has in the past been paid for sex (which would have been a separate disqualification on him donating) which just heightened evidence that this was a prejudicial decision that failed to look at the full picture of case law.

The judge, Mr Justice Treacy, in making his ruling said:

"The minister has decided that MSM (males who have sex with other
males) behaviour creates such a high risk of infection to the donor that
such donors must be permanently deferred with the result that such
blood cannot enter the Northern Ireland blood stock.

"Importing blood from other places which do accept MSM
donors, even in limited quantities, leaves the door open for MSM blood
to do just that.

"There is clearly a defect in reason here."

Adding that the decision was irrational and that:

"If there is a genuine concern about the safety of MSM-donated blood,
such that the blood stock must be protected absolutely from such blood,
then the security of that blood must actually be maintained absolutely."

He went further to address the accusation that the Minister had breached the ministerial code as the lifetime ban was both controversial and cross-cutting, taking in equality issues, saying:

"As such the minister had no authority to act without bringing them
to the attention of the Executive Committee which he failed to do.

"In doing so the minister breached the ministerial code
and... had no legal authority to take a decision in breach of the
ministerial code."

This is another decision in the High Court after the one that the ban on same-sex couples that has taken a step towards equality for the LGBT community in Northern Ireland. Sadly we know that Mr Poots was not happy with that previous decision and has decided to appeal it to the Supreme Court. I do not hold up hopes that he will not attempt to do the same again, even though he is criticised already for breaking the ministerial code.

However, the ruling that once again the personal prejudices rather than actual scientific evidence have clouded the decision making process of the Minister on a matter where equality comes into play is a welcome. We can only hope that in future cases will be based on their scientific merit rather than prejudice without one of the minorities supposedly protected in the Belfast Act having to take Departments to the High Court to ensure carry out "their duty".

Unfortunately I expect the LGBT community will have to go to court once again in Northern Ireland before they can get married in the morning.

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